The NIHRC Blog #6

Our September blog post is written by our Chief Commissioner, Les Allamby.

Today, Reclaim the Agenda and Women’s Aid held a demonstration in Belfast to fight the two child limit on certain social security benefits. Human rights is increasingly to the fore in the legal battle against regressive social security policies introduced under the guise of welfare reform. The two child limit applies to child tax credit and universal credit, and restricts the child element in both benefits to two children for new claims where a third or subsequent child is born after 6 April 2017.

The Child Poverty Action Group in Britain has launched a judicial review to challenge the two child limit on the grounds of disproportionately interfering with the rights of parents and children under Article 8 of the ECHR (the right to family and private life) and freedom from discrimination. The latter challenge is based on the policy discriminating against children with multiple siblings and those who are morally opposed to contraception and/or abortion on grounds of religious belief. The proceedings embrace international human rights law, including the UN Convention on the Rights of the Child (UNCRC) Article 3 (‘the best interests of the child’ principle) and Article 26 (the right to social security).

The role of UNCRC has already come under legal scrutiny in earlier challenges to the introduction of an overall benefit cap. In R (SG and others) in 2015, the Supreme Court upheld the original overall benefit cap of £23,000 a year. The Court held by majority that the benefit cap was not in line with Article 3 of the UNCRC, but held by a different majority that this was not relevant to the question of whether there was unjustified discrimination against the social security rights of the mother as the claimant. In effect: a narrow escape for the government.

The overall benefit cap has now been further reduced to £20,000 a year. A successful legal challenge was made in the High Court in Britain in June 2017. In DA and others, the High Court held the overall cap was unlawful in being applied to lone parents with a youngest child under two years of age. In particular, the court ruled that Article 8 (the right to family life) and Article 1, Protocol 1 (the right to enjoyment of possessions including social security benefits) were engaged, and that UNCRC Article 3 could be taken into account in interpreting the ECHR. Applying this, the court subsequently held that the Secretary of State for Work and Pensions had failed to have regard to the best interests of the child principle and this amounted to discriminatory and unjustifiable treatment of such claimants. The judgement was forthright in its criticism of the policy rationale for the overall cap, holding that ‘real misery is being caused to no good purpose’.

The Department for Work and Pensions has appealed the judgement and issued guidance to continue to apply the benefit cap to lone parents with children under two despite it being in breach of human rights. Anyone affected by this decision in Northern Ireland should lodge an appeal now rather than wait for the outcome of the case. A separate challenge to the overall benefit cap for lone parents with children over two has also been launched by CPAG (in DS and others).

Returning to the two child policy, a similar rationale to the benefit cap has been invoked by government i.e. the need to encourage claimants into work alongside making claimants face the same financial choices that working families have to make about the size of a family. The policy amounts to a blunt instrument paying no heed to the myriad of circumstances in which working age families can find themselves in or out of work. The provision is fraught with contradictions effectively acting as a disincentive for lone parents with children to come together and form a new relationship in a single household or for couples without children to take on kinship care responsibilities.

With Northern Ireland having larger families than elsewhere in the UK, the policy will have a greater impact. One specific issue locally, is the rape exemption clause. Under the Criminal Law Act (NI) 1967, it is a criminal offence for individuals to fail to report knowledge of crime thereby placing third party assessors and claimants in an insidious position in seeking to report and verify the exemption. The NI Association of Social Workers and many other organisations have taken up this issue.

In practice, any legal challenge locally should concentrate on the wider impact of the two child policy rather than the problems with the limited exemptions. The two child policy and the new overall benefit cap illustrate the important role human rights can play in challenging the efficacy and impact of such policies. It also illustrates why the inclusion of the principle of defining social security as a human right is such a welcome inclusion in the Social Security (Scotland) Bill.

The Commission is interested in hearing from any claimants either already or likely to be affected by the policy.